This appeal considered the mental element required for a conviction under Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2007. The Court defined what the Prosecution needed to prove to show that a defendant has ‘knowingly permitted’ the contravention of Regulation 12 of the 2007 Regulations.
Regulation 38 of the 2007 Regulations states:
(1) It is an offence for a person –
(a) to contravene, or knowingly cause or knowingly permit the contravention of, regulation 12;
(b) to fail to comply with or to contravene an environmental permit condition.
Regulation 12 provides:
No person may operate a regulated facility except under and to the extent authorised by an environmental permit.
In this case, the Defendant owned the relevant site. The site was being used by a third party as an illegal waste transfer station and for the burning of waste. The Defendant was not involved in these processes. The Defendant argued that the Prosecution had to show that the Defendant knew that the waste operation was not authorised by an environmental permit. HHJ Lea found against the Defendant on this point, which then pleaded guilty, but appealed.
Simon J, giving the judgment of the Court of Appeal, held :
“The words ‘knowingly’ and ‘permit’ relate to knowledge of the facts and not as to the existence and scope of the permission or conditions of a licence. The Prosecution does not have to show that a defendant knew that the matters of which it was aware were not permitted. There are good reasons for this: there are means of checking the existence and conditions of environmental permits, and ignorance of these matters should not be a defence to an environmental offence.”
It was no defence that for a defendant to say that it has been told lies .
The Court of Appeal held that the Regulations no longer contained a defence based on the exercise of due diligence, and agreed with the Environment Agency that the Defence’s approach would constitute introducing defence of due diligence “by the backdoor” .
The Court of Appeal did not deal with the matter of sentencing, but pointed out that guidelines are shortly to be published by the Sentencing Council .